Do the Klamath Irrigators have
rights to the stored water in the Klamath
Reclamation Project, a storage that they paid
for in full? According to the irrigators’ deeds,
land owners and their heirs forever have water
rights apportioned to their land; does this
constitute a property right under the fifth
amendment? Can it be sold?

U.S. District Judge
Francis M.
Allegra via teleconference

These are some of the questions asked by U.S.
District Judge Francis M. Allegra on March 30th in a
federal claims court in Washington D.C. while dozens
of interested people viewed the Marzulla takings
case live in the OIT college union. After water was
withheld from Klamath farms in 2001, irrigators
filed a takings lawsuit against the federal
government for taking their water: water stored with
the specific purpose of irrigation. This stored
water would not have been available for any uses
before the project was built.

Roger Marzulla, attorney for the
Klamath Irrigators, told Judge Allegra about
Tulelake homesteaders Fred and Velma Robison.
With the Klamath Reclamation Act, Robison’s
water priority goes back to 1905 when Congress
decided to build a reclamation project to settle
the West and create small family farms to feed
the nation. Water from the previous Tule Lake
was rerouted into ditches, Klamath Lake for
storage, reservoirs for evaporation, and down
the Klamath River so land could be farmed. This
project is one of the most efficient in the
United States.

Documents state that after living on their land
for a specified time and paying for construction of
the Klamath Project, the homesteaders would be given
a deed to their land. Until the time the cost was
paid, the U.S. government held a "lien on the land
patented or for which water right is certified,
together with all rights appurtenant or belonging
thereto". Marzulla argued the government could not
put a lien on the land or water if it is not
considered ‘property.’ And why would they build
irrigation storage, require farmers to pay for it
with the promise of water rights "for his heirs and
assigns forever", then not acknowledge that right.
Go HERE
for ORIGINAL DEED.

Marzulla continued that water which was put into
Upper Klamath Lake was for irrigation use only:
irrigation of small family farms, many that
historically were under water. He cited several
similar court cases and said many western states
have the same laws and rights. Even "the biological
opinion says irrigators have water rights."

Justice Department attorney Kristine Tardiff
representing the U.S. told Judge Allegra
that irrigators expected water every year. It’s a
"contractual defined expectancy". She contended that
there is no ownership of water like there is with
land, and people can not sell or transfer their
water.

It was the Department of Justice and Bureau of
Indian Affairs who hired Dr Hardy to create science
to shut down the Klamath Project. This ‘science’ was
not open to peer review by irrigators or any
objective sources, and it was later found ‘flawed’
by the National Research Council.

Marzulla brought up that each year since 2003,
U.S. has bought a substantial amount of water, this
year 100,000 acre feet. If irrigators did not own
something, the U.S. would not be buying water from
them.

Attorney for intervener Pacific Coast Federation
of Fishermen's Associations said that Endangered
Species Act rights trump private water rights.

James Ottoman, descendent of Czech families who
settled Malin in 1909, attended the teleconference.
His family was named National Farm Family of the
Year in 1975. In 2001, when water was withheld from
1400 family farms, he was one of the statistics. He
lost his farm along with several other long-time
settlers.

"I still have concern how they made the decision
to take our water away. It was wrong, but it was
planned," said Malin farmer Ellen Crawford. Since
the 2001 water shut-off, the court ruled that the
coho listing was illegal, and the National Research
Council said that the water shut-off was
‘unjustified’.

Steve Kandra, Klamath Water Users President, said
it was gratifying that people in the Klamath Basin
could participate in this hearing. He complimented
Judge Allegra on his pledge to come to a conclusion
expeditiously.

Questions still remain. Do the deeds and patents
issued by the United States of America to settlers
and their heirs, many of whom were veterans, mean
what they say? Are these documents promising water
rights with farmers’ lands fictitious? How can
contracts between our President and our War Veterans
now be overruled by a 1973 Endangered Species Act?
And can the United States government take deeded
water from family farmers and not be required to pay
for it?